EXHIBIT 10.4
THE REGISTERED HOLDER HEREOF HAS REPRESENTED TO THE ISSUER OF THE
SHARES REPRESENTED HEREBY THAT IT HAS ACQUIRED SUCH SECURITIES FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION. ACCORDINGLY, SUCH SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
OR BLUE SKY LAWS, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS SUBSEQUENTLY REGISTERED THEREUNDER OR AN EXEMPTION FROM REGISTRATION
THEREUNDER IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF THE SECURITIES PURCHASE AGREEMENT DATED NOVEMBER 14, 2001, AS AMENDED,
MODIFIED OR RESTATED FROM TIME TO TIME, AMONG THE ISSUER (THE "CORPORATION") AND
THE OTHER PARTIES THERETO. THE TERMS OF SUCH AGREEMENT INCLUDE, AMONG OTHER
OBLIGATIONS, EQUITY COMMITMENT OBLIGATIONS. FAILURE TO SATISFY SUCH OBLIGATIONS
COULD SUBJECT THE HOLDER OF SUCH SECURITIES TO CERTAIN NEGATIVE EVENTS MORE
FULLY DESCRIBED IN SUCH AGREEMENT. COPIES OF SUCH AGREEMENT WILL BE FURNISHED TO
THE HOLDER HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST OF THE CORPORATION.
No. of Shares of Warrant No. W-3
Class A Common Stock: 452,343
November 14, 2001
WARRANT
TO PURCHASE CLASS A COMMON STOCK OF
LPA HOLDING CORP.
THIS IS TO CERTIFY THAT LPA Investment, LLC, or its registered
assigns, is entitled to purchase in whole or in part from time to time from LPA
Holding Corp., a Delaware corporation (the "Issuer"), at any time on and after
the Effective Date (as hereinafter defined), but not later than 5:00 p.m., New
York time, on November 14, 2011 (the "Expiration Date"), shares of Class A
Common Stock (as hereinafter defined) at a purchase price of $0.01 per share
(the "Exercise Price"), subject to the terms and conditions provided herein and
in the Purchase Agreement (as hereinafter defined). The number of shares of
Class A Common Stock for which this Warrant shall be exercisable and the
Exercise Price are subject to adjustment from time to time as provided herein.
This Warrant is issued pursuant to the Securities Purchase
Agreement dated as of November 14, 2001 (as modified and supplemented and in
effect from time to time, the
"Purchase Agreement") among the Issuer, LPA tInvestment LLC, a Delaware limited
liability company ("LPA Investment"), and the other parties thereto from time to
time.
SECTION 1. CERTAIN DEFINITIONS.
(i) Each capitalized term used herein without
definition shall have the meaning assigned thereto (or
incorporated by reference) in the Purchase Agreement.
(ii) As used herein, the following terms shall have
the following meanings (all terms defined in this Section 1 or
in other provisions of this Warrant in the singular to have
the same meanings when used in the plural and vice versa):
"Affiliate" means, with respect to any specified Person, any
other Person that, directly or indirectly, controls, is under common control
with, or is owned or controlled by, such specified Person. For purposes of this
definition,
(A) "control" means, with respect to any
specified Person, the power to direct the management
or policies of the specified Person through the
ownership of voting securities, by contract, voting
agreement or otherwise, and
(B) the terms "controlling", "control with"
and "controlled by", etc. shall have meanings
correlative to the foregoing.
"Board" shall mean the Board of Directors of the Issuer.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which commercial banks are authorized or required to close in
New York, New York or Kansas City, Kansas.
"Class A Common Stock" shall mean the Issuer's Class A Common
Stock, $.01 par value per share.
"Class B Common Stock" shall mean the Issuer's Class B Common
Stock, $.01 par value per share.
"Common Stock" shall mean the Class A Common Stock and the
Class B Common Stock.
"Current Market Price" shall mean, as to any security, the
average of the closing prices of such security's sales on all domestic
securities exchanges on which such security may at the time be listed, or, if
there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
in New York City, on such day, or, if on any day such security is not quoted in
the NASDAQ System, the average of the highest bid and lowest asked prices on
such day in the domestic over-the-counter market as reported by the
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National Quotation Bureau, Incorporated, or any similar or successor
organization (and in each such case (i) averaged over a period of 21 days
consisting of the day immediately preceding the day as of which "Current Market
Price" is being determined and the 20 consecutive Business Days prior to such
immediately preceding day and (ii) excluding any trades that are not bona fide,
arm's length transactions). If at any time such security is not listed on any
domestic securities exchange or quoted in the NASDAQ System or the domestic
over-the-counter market, the "Current Market Price" of such security shall be
the fair market value thereof as determined by the Board in good faith, using an
appropriate valuation method, assuming an arms-length sale to an independent
party. In determining the fair market value of any class or series of Common
Stock, a sale of all of the issued and outstanding Common Stock of the Issuer
will be assumed, and assuming the conversion or exchange of all securities then
outstanding that are convertible into or exchangeable for Common Stock and the
exercise of all rights and warrants (including the Warrants) then outstanding
and exercisable to purchase shares of such stock or securities convertible into
or exchangeable for shares of such stock; provided, however that such assumption
will not include those securities, rights and warrants convertible into Common
Stock where the conversion, exchange or exercise price per share is greater than
the fair market value; provided, further, however, that fair market value shall
be determined with regard to the relative priority of each class or series of
Common Stock (if more than one class or series exists.)
"Effective Date" shall mean the date set forth on the first
page of this Warrant.
"Exercise Notice" shall have the meaning assigned to such term
in Section 2(a)(i) hereof.
"Exercise Price" shall have the meaning assigned to such term
in the first paragraph of this Warrant.
"Expiration Date" shall have the meaning assigned to such term
in the first paragraph of this Warrant.
"Holder" shall mean the registered holder of this Warrant.
"include" and "including" shall be construed as if followed by
the phrase ", without being limited to,".
"Issuer" shall have the meaning assigned to such term in the
first paragraph of this Warrant.
"Majority Holders" shall mean those Persons holding a majority
of the Warrants issued in connection with the Purchase Agreement.
"NASDAQ System" shall mean the National Association of
Securities Dealers Automated Quotation System.
"Person" shall be construed broadly and shall include any
natural person, company, partnership, joint venture, corporation, limited
liability company, business trust, unincorporated organization or Governmental
Entity.
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"Purchase Agreement" shall have the meaning assigned to such
term in the second paragraph of this Warrant.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Stockholders Agreement" shall mean the Stockholders Agreement
dated as of May 11, 1998 among the Issuer, LPA Investment and the other
signatories thereto, as amended, modified, supplemented or restated and in
effect from time to time.
"Warrant" shall mean this Warrant originally issued by the
Issuer pursuant to the Purchase Agreement and all warrants issued upon transfer,
division, or combination of, or in substitution for, this Warrant. All Warrants
shall be substantially in the form of Exhibit A attached to the Purchase
Agreement except that the Warrants need not bear the legends appearing on the
first page of this Warrant from and after such time as the restrictions set
forth therein no longer apply.
"Warrant Holder" shall mean any Person who acquires Warrants
or Warrant Stock pursuant to the provisions of the Purchase Agreement or any
Warrant, including any transferees of Warrants or Warrant Stock.
"Warrant Stock" shall mean (i) all shares of Class A Common
Stock issued or issuable from time to time upon exercise of this Warrant, (ii)
all other securities or other property issued or issuable upon any such exercise
and (iii) any securities distributed with respect to the securities referred to
in the preceding clauses (i) and (ii): provided, however, that the term "Warrant
Stock" shall not include shares of Class A Common Stock or other securities
following the time such shares or other securities have been sold in a public
offering registered under the Securities Act or sold under Rule 144 promulgated
thereunder. As used in this Warrant, the phrase "Warrant Stock then held" shall
mean Warrant Stock held at the time of determination by the Holder, and shall
include Warrant Stock issuable upon exercise of any Warrants held at the time of
determination by such Holder.
SECTION 2. EXERCISE OF WARRANT.
(i) On and after the Effective Date and until 5:00 p.m. in New
York City on the Expiration Date, the Holder may exercise this Warrant,
on one or more occasions, on any Business Day, in whole or in part, by
delivering to the Issuer, at its office maintained for such purpose
pursuant to Section 5(a) hereof:
(A) a written notice of the Holder's election to
exercise this Warrant, which notice shall be substantially in
the form of Exhibit A attached hereto and shall be properly
completed (the "Exercise Notice"),
(B) payment of the Exercise Price (payable as set
forth in Section 2(b) below) for the Warrant Stock as to which
this Warrant is being exercised, and
(C) this Warrant.
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Except to the extent necessary to cause the number of shares of Class A
Common Stock deliverable as provided in Section 2(b) to be a whole
number of shares, this Warrant shall be exercisable in part only for a
whole number of shares.
(ii) At the option of the Holder, the Exercise Price
shall be payable
(A) in cash or by certified or official bank
check payable to the order of the Issuer; or
(B) by delivery of this Warrant to the
Issuer for cancellation in accordance with the
further provisions of this Section 2(b).
In exchange for the portion of this Warrant that is being exercised at such
time, the Holder shall receive the number of shares of Class A Common Stock
determined by multiplying (A) the number of shares of Class A Common Stock for
which this Warrant is being exercised at such time by (B) a fraction, (1) the
numerator of which shall be the difference between (x) Current Market Price per
share of Class A Common Stock at such time and (y) the Exercise Price per share
of Class A Common Stock, and (2) the denominator of which shall be the Current
Market Price per share of Class A Common Stock at such time. The Issuer shall
issue a new Warrant for the portion, if any, of this Warrant not being exercised
as provided in Section 2(f).
(iii) Subject to the provisions of Section 2(d), upon
receipt of an Exercise Notice, the aggregate Exercise Price
payable and this Warrant, the Issuer shall, as promptly as
practicable and in any event within five (5) Business Days
thereafter, issue one or more stock certificates representing
the aggregate number of shares of Class A Common Stock to
which the Holder is entitled and transfer to the Holder of
this Warrant appropriate evidence of ownership of other
securities or property (including any cash) to which the
Holder is entitled, in such denominations, and registered or
otherwise placed in, or payable to the order of, such name or
names, as may be directed in writing by the Holder, and shall
deliver such stock certificates, evidence of ownership and any
other securities or property (including any cash) to the
person or persons entitled to receive the same, together with
an amount in cash in lieu of any fraction of a share (or
fractional interest in any other security), as hereinafter
provided. The Issuer shall pay all expenses in connection
with, and any and all documentary, stamp or similar issue or
transfer taxes of the United States or any state thereof
payable in respect of, the issue or delivery of the Warrant
Stock upon exercise of this Warrant. However, the Issuer shall
not be required to pay any tax or other charge imposed in
connection with any assignment or transfer involved in the
issue of any certificate or other evidence of ownership of
Warrant Stock.
(iv) The Holder's election to exercise this Warrant
may, in the sole discretion of the Holder, be conditioned
upon, and in such event, the exercise shall be subject in all
respects to, the consummation of a sale of the Issuer, the
public offering of any class of the Issuer's Common Stock
registered under the Securities Act or other similar
transaction involving the Issuer, as specified in the Exercise
Notice. If any exercise of this Warrant is so conditioned,
then, subject to
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delivery of the items required by Section 2(c), the Issuer
shall deliver the certificates and other evidence of ownership
of other securities or other property in such manner as the
Holder shall direct as required in connection with the
consummation of the transaction upon which the exercise is
conditioned. At any time that the Holder shall give notice to
the Issuer that such transaction has been abandoned or the
Holder has withdrawn from participation in such transaction,
the Issuer shall return the items delivered pursuant to
Section 2(c) and the Holder's election to exercise this
Warrant shall be deemed rescinded.
(v) The stock certificate or certificates or other
evidence of ownership of Warrant Stock to be delivered
pursuant to Section 2(c) hereof shall be deemed to have been
issued, and the Holder or any other Person so designated to be
named therein shall, to the extent permitted by law, be deemed
to have become a holder of record of the Warrant Stock
represented thereby, including having the right to vote any
voting securities included therein or to consent or to receive
notice as a shareholder, as of the date on which the last of
the Exercise Notice, payment of the Exercise Price and this
Warrant is received by the Issuer as aforesaid, (subject, in
the case of any exercise to which Section 2(d) applies, to the
consummation of the transaction upon which such exercise is
conditioned) notwithstanding that the transfer books of the
Company shall then be closed or that such certificates or
other evidence of ownership shall not then actually have been
delivered to the Holder.
(vi) If this Warrant shall have been exercised only
in part, the Issuer shall, at the time of delivery of the
certificate or certificates or other evidence of ownership of
Warrant Stock, execute and deliver to the Holder, without
charge, a new Warrant evidencing the rights of the Holder to
purchase the unpurchased Warrant Stock called for by this
Warrant, which new Warrant shall in all other respects be
identical to this Warrant, except for any legend hereon to the
extent no longer required pursuant to the Purchase Agreement
or the Stockholders Agreement.
(vii) The Issuer shall not be required to issue any
fractional share of Class A Common Stock (or fractional
interest in any other security) upon exercise of this Warrant.
As to any fraction of a share (or fractional interest in any
other security) that the Holder would otherwise be entitled to
receive upon such exercise, the Issuer shall pay a cash
adjustment in respect of such fraction in an amount equal to
the same fraction of the Current Market Price per share of
Class A Common Stock (and/or other security) on the date of
exercise; provided, however, that in the event that the Issuer
undertakes a reduction in the number of shares of Class A
Common Stock or other securities outstanding, it shall be
required to issue fractional shares or fractional interests in
such other securities to the Holder if the Holder exercises
all (but not part) of this Warrant, unless the Holder shall
have consented in writing to such reduction and provided the
Issuer with a written waiver of its right to receive
fractional shares or interests in accordance with this
paragraph. If the Holder shall exercise more than one Warrant
in the same transaction, any payment in respect of fractional
shares (or
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other fractional interests) shall be based on the final
fraction resulting from aggregating all such exercises.
(viii) The Issuer hereby agrees at all times to keep
reserved for issuance and delivery upon exercise of this
Warrant such number of its authorized but unissued shares (or
treasury shares) of Class A Common Stock or other securities
of the Issuer from time to time issuable upon exercise of this
Warrant as will be sufficient to permit the exercise in full
of this Warrant. All such shares and other securities shall be
duly authorized and, when issued upon exercise of this Warrant
in accordance with the terms hereof, shall be validly issued,
fully paid and non-assessable, free and clear of all liens,
security interests, charges and other encumbrances or
restrictions on sale (except to the extent of any applicable
provisions set forth in the Purchase Agreement or
Stockholders' Agreement) and free and clear of all preemptive
or similar rights.
(ix) If the issuance of any shares of Class A Common
Stock or other securities required to be reserved for purposes
of the exercise of this Warrant requires the registration
with, or approval of, any governmental authority or requires
listing on any national securities exchange or national market
system before such shares or other securities may be so
issued, the Issuer shall at its expense use its best efforts
to cause such shares to be duly registered, approved or
listed, as the case may be, so that such shares or other
securities may be issued in accordance with the terms hereof;
provided, however, that this provision shall not obligate the
Issuer to register such shares or other securities under the
Securities Act or qualify them under state securities or blue
sky laws.
SECTION 3. TRANSFER, DIVISION AND COMBINATION.
(i) This Warrant may not be Transferred other than in
accordance with Section 6.3 of the Purchase Agreement.
(ii) This Warrant may be exchanged for, or combined
with, other Warrants upon presentation of this Warrant and any
other Warrants with which this Warrant is to be combined to
the Issuer, together with a written notice specifying the
denominations in which a new Warrant or Warrants are to be
issued, signed by the Holder. The Issuer shall execute and
deliver a new Warrant or Warrants to the Holder in exchange
for the Warrant or Warrants to be divided or combined in
accordance with such notice.
(iii) The Issuer shall maintain books for the
registration and transfer of the Warrants, and shall allow
each Warrant Holder to inspect such books at such reasonable
times as such holder shall request.
SECTION 4. ADJUSTMENTS.
(i) Dividends and Distributions. If at any time the
Issuer shall pay any dividend or make any other distribution
to holders of its Class A Common Stock of any cash, evidence
of indebtedness or other property (including any rights or
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warrants to purchase any securities of the Issuer) of any nature
whatsoever (other than as contemplated by Sections 4(b), 4(c)(i)(A) and
4(d)(i)(A)), the Issuer shall at the same time pay or distribute to the
Holder (whether or not the Holder exercises this Warrant) the cash,
evidence of indebtedness or other property the Holder would have been
entitled to receive if such Holder had exercised this Warrant
immediately prior to the record date for such dividend or distribution.
(ii) Subdivisions and Combinations. If at any time
the Issuer shall
(A) take a record of the holders of its
Common Stock for the purpose of entitling them to
receive a dividend or other distribution of Common
Stock;
(B) subdivide, split or reclassify its
outstanding shares of Common Stock into a larger
number of shares of Common Stock; or
(C) combine its outstanding shares of Common
Stock into a smaller number of shares of Common
Stock;
then immediately after the occurrence of any such event (A) the number of shares
of Class A Common Stock issuable upon exercise of this Warrant shall be adjusted
so as to equal the number of shares of Class A Common Stock the Holder would
have held immediately after the occurrence of such event (in the case of an
event referred to in clause (i), after giving effect to such dividend or
distribution) if the Holder had exercised this Warrant immediately prior to the
occurrence of such event and (B) the Exercise Price shall be adjusted to be
equal to (x) the Exercise Price immediately prior to the occurrence of such
event multiplied by (y) a fraction (1) the numerator of which is the number of
shares of Class A Common Stock issuable upon exercise of this Warrant
immediately prior to the adjustment in clause (A) and (2) the denominator of
which is the number of shares of Class A Common Stock issuable upon exercise of
this Warrant immediately after the adjustment in clause (A).
(iii) Merger, Consolidation or Disposition of Assets.
If the Issuer shall merge, consolidate or effect a share
exchange with another entity, or shall sell, transfer or
otherwise dispose of all or substantially all of its assets to
another entity and pursuant to the terms of such merger,
consolidation, share exchange or disposition of assets, cash,
shares of Common Stock or other securities of the successor or
acquiring entity, or property of any nature is to be received
by or distributed to the holders of Common Stock of the
Issuer, then the Holder shall be entitled to receive in
respect of the Warrant Stock issuable upon exercise of this
Warrant, the amount of cash, shares of Common Stock, other
securities or other property that it would have been entitled
to receive if such Holder had exercised this Warrant in full
immediately prior to the occurrence of such merger,
consolidation, share exchange or disposition of assets. In the
case of any such merger, consolidation, share exchange or
disposition of assets, the successor or acquiring entity (and
any Affiliate thereof issuing securities) shall expressly
assume the due and punctual observance and performance of each
and every covenant and condition of this Warrant to be
performed and observed by the
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Issuer and all of the obligations and liabilities hereunder,
subject to such modifications as may be deemed appropriate (as
determined by resolution of the Board and reasonably
acceptable to the Majority Holders) in order to provide for
adjustments of the Warrant Stock issuable upon exercise of
this Warrant that shall be as nearly equivalent as practicable
to the adjustments provided for in this Section 4. The
foregoing provisions shall similarly apply to successive
mergers, consolidations, share exchanges and dispositions of
assets.
(iv) Capital Reorganization or Capital
Reclassification. If the Issuer shall effect any capital
reorganization or any reclassification of its capital stock
(other than a change in par value or from par value to no par
value or from no par value to par value or as a result of a
stock dividend or subdivision, split-up or combination of
shares), then in each case the Issuer shall cause effective
provision to be made so that this Warrant shall be exercisable
for the kind and number of shares of stock, other securities,
cash or other property to which a holder of the Warrant Stock
deliverable upon exercise of this Warrant would have been
entitled upon such reorganization or reclassification and any
such provision shall include adjustments in respect of such
stock, securities or other property that shall be as nearly
equivalent as may be practicable to the adjustments provided
for in this Section 4 with respect to this Warrant.
(v) Other Action Affecting Common Stock. If at any
time or from time to time the Issuer shall take any action
affecting its Common Stock, other than any action described in
this Section 4, then, unless such action will not have an
adverse effect upon the Holder's rights, the number of shares
of Warrant Stock issuable upon exercise of this Warrant and
exercise price therefore shall be adjusted in such manner and
at such time as the Board shall in good faith determine (such
determination to be reasonably acceptable to the Majority
Holders) to be equitable in the circumstances, but no such
adjustment shall decrease the number of shares of Warrant
Stock issuable upon exercise of this Warrant or increase the
exercise price therefore.
(vi) Notice of Adjustments. Whenever the number of
shares of Warrant Stock issuable upon exercise of this Warrant
shall be adjusted pursuant to this Agreement, the Issuer shall
forthwith obtain a certificate signed by a firm of independent
accountants of recognized national standing selected by the
Issuer setting forth, in reasonable detail, the event
requiring the adjustment, the method by which such adjustment
was calculated and specifying the number of shares of Warrant
Stock issuable upon exercise of this Warrant after giving
effect to such adjustment. The Issuer shall promptly cause a
signed copy of such certificate to be delivered to the Holder.
The Issuer shall keep at its office maintained for purposes of
Section 5(a) hereof copies of all such certificates and cause
the same to be available for inspection at said office during
normal business hours by the Holder or any prospective
purchaser of a Warrant designated by the registered Holder
hereof.
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(vii) No Impairment. The Issuer will not, by
amendment of its Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed
hereunder by the Issuer, but will at all times in good faith
assist in the carrying out of all the provisions of this
Section 4 and in the taking of all such action as may be
necessary or appropriate in order to protect the exercise
rights of the Holder against impairment.
(viii) Miscellaneous. The computations of all amounts
under this Section 4 shall be made assuming all other
anti-dilution or similar adjustments to be made to the terms
of all other securities resulting from the transaction causing
an adjustment pursuant to this Section 4 have previously been
made so as to maintain the relative economic interest of this
Warrant vis a vis all other securities issued by the Issuer.
(ix) Par Value. The Issuer shall take or cause to be
taken such steps as shall be necessary to ensure that the par
value per share of Class A Common Stock is at all times less
than or equal to the Exercise Price.
(x) Minimum Adjustment of Exercise Price. No
adjustment of the Exercise Price shall be made in an amount of
less than 10% of the Exercise Price in effect at the time of
such adjustment is otherwise required to be made, but any such
lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment
which, together with any adjustments so carried forward, shall
amount to not less than 10% of such Exercise Price; provided,
however, that all carried forward adjustments shall be made on
the exercise of the Warrant.
SECTION 5. MISCELLANEOUS.
(i) Office of Issuer. So long as this Warrant remains
outstanding, the Issuer shall maintain an office in the
continental United States where the Warrants may be presented
for exercise, transfer, division or combination as provided in
this Warrant. Such office shall be at 14 Corporate Woods, 8717
West 110th Street, Suite 300, Overland Park, Kansas 66210,
unless and until the Issuer shall designate and maintain some
other office for such purposes and give notice thereof to the
Holder.
(ii) Notices Generally. Any notices and other
communications pursuant to the provisions hereof shall be sent
in accordance with the provisions of Section 7.5 of the
Purchase Agreement.
(iii) Governing Law. This Warrant shall be governed
by and construed in accordance with the laws of the State of
New York without regard to its conflicts of laws rules. The
Issuer agrees that it may be served with process in the State
of
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New York and any action for breach of this Warrant may be
prosecuted against it in the courts of such State or any
Federal court located in such State.
(iv) Limitation of Liability. Except as otherwise
provided herein, this Warrant does not entitle the Holder to
any voting rights or other rights of a shareholder of the
Issuer, as a shareholder. No provision hereof, in the absence
of affirmative action by the Holder to purchase shares of
Class A Common Stock, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any
liability of the Holder for the Exercise Price or as a
shareholder of the Issuer, whether such liability is asserted
by the Issuer, by any creditor of the Issuer or any other
Person.
(v) Loss or Destruction of Warrant. Upon receipt by
the Issuer of evidence satisfactory to it (in the exercise of
its reasonable discretion) of the loss, theft, destruction or
mutilation of this Warrant and (in the case of loss, theft or
destruction), if requested by the Issuer, of reasonably
satisfactory indemnification (if the Holder is a financial
institution or an Affiliate thereof, its own agreement being
satisfactory), or (in the case of mutilation) upon surrender
and cancellation of this Warrant, the Issuer shall, without
charge, execute and deliver a new Warrant exercisable for the
same amount of Warrant Stock.
(vi) Amendments and Waivers. Any provision of this
Warrant may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of
an amendment, by the Issuer and the Majority Holders (provided
than no amendment that treats a particular Holder in a
non-ratable, discriminatory fashion shall be effective against
such Holder without its consent) and, in the case of a waiver,
by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
* * * * *
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IN WITNESS WHEREOF, the Issuer has caused this Warrant to be
executed by its duly authorized officers and the Warrant to be dated as of the
date first set forth above.
LPA HOLDING CORP.
By: /s/ Jeffrey Fletcher
-----------------------------
Name: Jeffrey Fletcher
Title: Secretary and Chief Financial Officer
EXHIBIT A TO WARRANT
FORM OF EXERCISE NOTICE
(To be executed by the registered holder hereof)
The undersigned registered owner of this Warrant exercises
this Warrant for the purchase of ________ shares of Class A Common Stock of LPA
Holding Corp., a Delaware corporation, and herewith makes payment therefor of
$__________ (such payment being made [check one] (x) [ ] in cash or by certified
or official bank check or (y) [ ] by acceptance of a reduced number of shares of
Class A Common Stock upon cancellation of this Warrant as provided in Section
2(b) of this Warrant, all on the terms and conditions specified in this Warrant,
and requests that
(a) certificates and/or other instruments covering such shares
of Class A Common Stock be issued in accordance with the instructions
given below and
(i) if such shares of Class A Common Stock shall not
include all of the shares of Class A Common Stock to which the
Holder is entitled under this Warrant, that a new Warrant for
the unpurchased balance of the shares of Class A Common Stock
issuable hereunder be delivered to the undersigned. References
in this Exercise Notice to "Class A Common Stock" shall
include other securities or other property to the extent
included in Warrant Stock.
The undersigned agrees that the shares to be issued upon
exercise of this Warrant may not be offered, sold, assigned, pledged,
hypothecated or otherwise transferred or disposed of except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
and applicable provisions of state securities laws.
[This Exercise Notice is being delivered contingent upon the
consummation of [describe transaction] as contemplated by Section 2(d) of this
Warrant].*
Dated:
----------------------
--------------------------------------
(Signature of Registered Holder)**
Instructions for issuance and
registration of shares of
Class A Common Stock:
Social Security or Other
- ---------------------------- Identifying Number:
Name of Registered Holder ---------------------
(please print)
- ----------------------------
* Include if applicable.
** The signature must correspond with the name as written upon the face of
the attached Warrant in every particular, without alteration.
Please deliver certificate to
the following address:
- -----------------------------------
Street
- -----------------------------------
City, State and Zip Code